CONSTITUTIONAL 


ASPECTS    OF    ANNEXATION 


BY 


CARMAN   F.  RANDOLPH 


AUTHOR    OF    "THE    LAW     OF    EMINENT    DOMAIN 


[Advance  Sheets  of  thh   Harvard  Law  Review,   January,   1899] 


CAMBRIDGE 

HARVARD    LAW    REVIEW 

1898 


*^Vt<A  tlie  Gomplimentd  of 

Gazman  tt,  cJt>andolpli 


CONSTITUTIONAL 


ASPECTS     OF    ANNEXATION 


BY 
CARMAN    F.  RANDOLPH 

AUTHOR    OF    "the     LAW     OF     F.MINENT    DOMAIN 


[Advance  Sheets  of  the   Harvard   Law   Review,    January,    1899] 


CAMBRIDGE 

HARVARD     LAW    REVIEW 

1898 


CONSTITUTIONAL   ASPECTS    OF 
ANNEXATION. 


Part  First. 


w 


/HETHER  a  European  power  shall  indulge  the  appetite  for 
land  is  a  question  merely  of  ability  and  expediency.  An 
Englishman,  a  Frenchman,  a  Russian,  or  a  German  would  not  pre- 
sume  to  discuss  the  right  of  his  government  to  seize  land  anywhere, 
hold  it  by  any  tenure,  and  rule  it  at  will.  For  these  governments, 
however  unlike  in  structure  and  purpose,  enjoy  alike  sovereignty 
in  its  elementary  form.  What  the  government  wills,  that  it  may 
do  without  considering  the  act  or  its  consequences  in  the  light  of 
an  organic  law  of  binding  obligation.  The  Federal  Government  is 
in  a  different  position.  Its  powers  are  conferred,  and  duties  and 
restraints  are  imposed  upon  it,  by  a  written  constitution  inter- 
preted by  an  independent  judiciary. 

Whether  the  United  States  shall  annex  Spanish  lands  now  in 
their  military  possession,  or  within  the  immediate  sweep  of  their 
military  arm,  demands  a  more  searching  examination  of  the  powers, 
the  duties,  the  purposes  of  our  republic  as  marked  by  the  Constitu- 
tion than  has  any  question  arising  since  the  Civil  War. 

II. 

The  United  States  have  the  power  of  expansion.  Chief  Justice 
Marshall  says :   "  The  Constitution  confers  absolutely  on  the  gov- 


ernment  of  the  Union  the  powers  of  making  war  and  of  making 
treaties  ;  consequently  that  government  possesses  the  power  of 
acquiring  territory  either  by  conquest  or  by  treaty."  ^  A  state 
may  add  to  its  domain  by  discovery  and  settlement,  and  the 
Supreme  Court  has  recognized  this  method  of  acquisition  as  one 
approved  by  the  law  of  nations  ;2  though  perhaps  it  may  be  ap- 
proved more  accurately  as  necessarily  inferred  from  larger  con- 
stitutional powers.  Surely  if  a  nation  can  buy  or  seize  land  it  can 
find  and  keep  land. 

The  power  of  expansion  is  illimitable  in  point  of  law.  Whenever 
the  President  and  Congress  join  in  extending  the  sovereignty  of 
the  United  States  over  a  particular  territory,  their  action  must  be 
respected  by  the  courts  without  regard  to  its  location.  "  Who  is 
the  sovereign  de  jure  and  de  facto  of  a  territory  is  not  a  judicial  but 
a  political  question,  the  determination  of  which,  by  the  legislative 
and  executive  departments  of  any  government,  conclusively  binds 
the  judges  as  well  as  all  other  officers,  citizens,  and  subjects  of  that 
government.  This  principle  has  always  been  upheld  by  this  court, 
and  has  been  affirmed  under  a  great  variety  of  circumstances."  ^ 

Is  the  power  to  annex  conditioned  upon  the  formation  of  States 
out  of  the  new  territory  .■'  This  question  is  not  suggested  by  the 
acquisition  of  small  tracts  for  specific  governmental  uses,  such  as 
coaling  stations,  or  of  vacant  guano  islands  under  the  Act  of  1856.* 
Nor  can  it  be  urged  as  a  legal  objection  to  annexation  that  the  land 
in  question  is  not  to  be  annexed  as  a  State,  for  the  admission  of 
a  State  is,  like  the  selection  of  territory,  a  political  matter  beyond 
the  competency  of  the  courts.  But,  according  to  the  spirit  of  the 
Constitution,  the  subjection  of  annexed  territory  to  exclusive 
federal  control  is  an  abnormal  and  temporary  stage  necessarily 
preceding  the  normal  and  permanent  condition  of  statehood.  Chief 
Justice  Marshall  described  the  Territories  as  being  "  in  a  state 
of  infancy  advancing  to  manhood,  looking  forward  to  complete 
equality  so  soon  as  that  state  of  manhood  shall  be  attained."  ^ 
Chief   Justice   Taney  said    that   the    power  to  admit  new   States 

1  American  Ins.  Co.  v.  Canter,  i  Peters,  511,  541. 

■^  Jones  V.  United  States,  137  U.  S.  202,  212  ;  Shively  v.  Bowlby,  152  U.  S.  i,  50. 

3  Jones  V.  United  .States,  137  U.  S.  202,  212. 

*  U.  S.  Revised  .Statutes,  §  5570. 

*  Loughborough  v.  Blake,  5  Wheaton,  317,  324. 


authorizes  "  the  acquisition  of  territory  not  fit  for  admission  at  the 
time,  but  to  be  admitted  as  soon  as  its  population  and  situation 
would  entitle  it  to  admission."^  And  Justice  Gray  said:  "Upon 
the  acquisition  of  a  Territory  by  the  United  States,  whether  by 
cession  from  one  of  the  States,  or  by  treaty  with  a  foreign  country, 
or  by  discovery  and  settlement,  the  same  title  and  dominion  passed 
to  the  United  States,  for  the  benefit  of  the  whole  people  and  in 
trust  for  the  several  States  to  be  ultimately  created  out  of  the 
Territory."  ^ 

All  the  land  ceded  to  the  United  States  by  the  States  was 
transferred  upon  the  understanding  that  it  should  be  formed  into 
States  eventually.  The  Third  Article  of  the  Treaty  of  1803, 
by  which  France  ceded  Louisiana,  recites  that  "  The  inhabitants 
of  the  ceded  territory  shall  be  incorporated  into  the  Union  of 
the  United  States,  and  admitted  as  soon  as  possible,  according  to 
the  principles  of  the  Federal  Constitution,  to  the  enjoyment  of 
all  the  rights,  advantages  and  immunities  of  citizens  of  the  United 
States.  .  .  ."  This  article  was  construed  by  Chief  Justice  Marshall 
to  mean  "  that  Louisiana  shall  be  admitted  into  the  Union  as  soon 
as  possible  upon  an  equal  footing  with  the  other  States;  "^  and  a 
like  meaning  is  to  be  placed  upon  the  Treaty  of  18 19,  by  which 
Spain  ceded  Florida,  and  the  Treaties  of  1848  and  1853,  by  which 
Mexico  ceded  California  and  New  Mexico.  Thus,  with  the  excep- 
tion of  Texas,  which  was  annexed  by  force  of  the  joint  resolution 
admitting  it  as  a  State,  the  vast  domain  gained  by  the  United  States 
down  to  1853  was  acquired  in  trust  for  States  to  be  subsequently 
admitted. 

The  promise  of  statehood  was  not  expressed  in  annexing  Alaska 
and  Hawaii,  and  the  bearing  of  this  departure  from  custom  upon 
a  pending  project  of  annexation  will  be  noted  later. 

in. 

There  is  some  difference  of  opinion  as  to  the  precise  source  of 
the  power  of  the  United  States  to  govern  territory  outside  the 
limits  of  States.  Chief  Justice  Marshall  said  :  "  The  power  of  gov- 
erning and  legislating  for  territory  is  the  inevitable  consequence  of 
the  right  to  hold  territory.     Could  this  proposition  be  contested, 

1  Scott  V.  Sandford,  19  Howard,  393,  447. 

2  Shively  v.  Bowlby,  152  U.  S.  i,  57. 

3  New  Orleans  v.  De  Armas,  9  Peters,  224,  235. 


the  Constitution  of  the  United  States  declares  that  'Congress  shall 
have  power  to  dispose  of  and  make  all  needful  rules  and  regulations 
respecting  the  territory  or  other  property  belonging  to  the  United 
States.'  "  ^  And  he  said  in  a  later  opinion :  "  In  the  meantime 
Florida  continues  to  be  a  Territory  of  the  United  States,  governed 
by  virtue  of  that  clause  in  the  Constitution  which  empowers  Con- 
gress '  to  make  all  needful  rules  and  regulations  respecting  the 
territory  or  other  property  belonging  to  the  United  States.'  " 

"  Perhaps  the  power  of  governing  a  territory  belonging  to  the 
United  States  which  has  not  by  becoming  a  State  acquired  the 
means  of  self-government  may  result  necessarily  from  the  fact  that 
it  is  not  within  the  jurisdiction  of  any  particular  State,  and  is  within 
the  power  and  jurisdiction  of  the  United  States.  The  right  to 
govern  may  be  the  inevitable  consequence  of  the  right  to  acquire 
territory."  ^ 

In  Chief  Justice  Taney's  opinion  the  power  to  "  make  all  need- 
ful rules,"  etc.,  refers  solely  to  land  ceded  by  the  States  and  the 
general  power  to  govern  territory  "  stands  firmly  "  on  the  right  to 
acquire  it,^  and  this  perhaps  is  the  better  because  the  simpler 
ground.  But,  to  quote  Chief  Justice  Marshall  again,  "Whatever 
may  be  the  source  from  which  the  power  is  derived,  the  possession 
of  it  is  unquestioned."*  And  it  should  be  added  that  the  scope  of 
the  power  must  be  the  same,  whichever  its  source. 

The  States  of  the  Union  are  under  the  jurisdiction  of  two 
legislatures,  —  Congress  and  the  State  legislature  each  has  its 
appropriate  sphere  of  authority.  The  Territories  are  under  the 
exclusive  control  of  Congress,  whose  position  is  defined  in  the 
following  opinions  of  the  Supreme  Court:  "By  the  Constitution,  as 
is  now  well  settled,  the  United  States,  having  rightfully  acquired 
the  Territories,  and  being  the  only  government  which  can  impose 
laws  upon  them,  have  the  entire  dominion  and  sovereignty,  national 
and  municipal,  federal  and  state,  over  all  the  Territories,  so  long 
as  they  remain  in  a  territorial  condition."  ^  "  Congress  may  not 
only  abrogate  laws  of  the  territorial  legislatures,  but  it  may  itself 
legislate  directly  for  the  local  government.     It  may  make  a  void 

1  Sere  v.  Pitot,  6  C ranch,  332,  336. 

2  American  Ins.  Co.  u.  Canter,  i  Peters,  511,  542. 
'  Scott  V.  Sandford,  19  Howard,  393,  432-444. 

*  American  Ins.  Co.  v.  Canter,  i  Peters,  511,  544. 
°  Shively  v.  Kowlby,  152  U.  S.  i,  48. 


5 

act  of  the  territorial  legislature  valid,  and  a  valid  act  void.  In 
other  words,  it  has  full  and  complete  legislative  authority  over  the 
people  of  the  territories  and  all  the  departments  of  the  territorial 
governments.  It  may  do  for  the  Territories  what  the  people,  under 
the  Constitution  of  the  United  States,  may  do  for  the  States."  ^ 
Although  the  difference  between  federal  and  local  affairs  is  not 
marked  in  the  Territories  by  governments  organically  distinct,  as 
in  the  States,  it  exists  nevertheless,  for  Congress  stands  in  a  double 
relation  to  each  Territory,  caring  for  its  local  interests  as  a  State 
government  might,  and  treating  it  as  a  part  of  the  republic  in  mat- 
ters of  federal  concern. 

IV. 

May  Congress  exert  its  power  over  territory  within  its  jurisdiction 
and  outside  the  limits  of  States  without  regard  to  the  Constitution? 

A  desire  to  possess  new  lands,  coupled  with  a  fear  lest  the  exten- 
sion of  the  Constitution  to  some  of  them  at  least  and  their  people 
would  both  prejudice  our  own  interests  and  hamper  our  rule,  has 
begotten  the  proposition  that  annexed  territory  not  admitted  as  a 
State  is  not  an  integral  part  of  the  "  United  States"  and  need  not 
be  governed  by  the  law  of  the  Constitution. 

Although  this  proposition  is  suggested  by  an  assumed  emergency, 
it  would,  if  established,  affect  equally  all  territory  without  the  limits 
of  States,  —  Alaska,  Arizona,  Hawaii,  New  Mexico,  Oklahoma,  and 
the  District  of  Columbia  would  lie  beyond  the  pale  of  the  Constitu- 
tion, and  therefore  under  the  arbitrary  control  of  Congress. 

The  popular  authority  in  support  of  the  proposition  is  a  passage 
in  a  recent  opinion  of  the  Circuit  Court  of  Appeals  for  the  Ninth 
Circuit  sustaining  an  Act  of  Congress  forbidding  the  importation, 
manufacture,  and  sale  of  liquor  in  Alaska.^     The  Court  says :  — 

"In  support  of  the  first  ground  of  demurrer,  it  is  contended  that  the 
law  upon  which  the  prosecution  is  based  is  unconstitutional,  because, 
among  other  things,  the  government  of  the  United  Stares  can  exercise 
only  those  specific  powers  conferred  upon  it  by  the  Constitution  ;  that  the 
Constitution  guarantees  to  the  citizens  the  right  to  own,  hold,  and  acquire 
property,  and  makes  no  distinction  as  to  the  character  of  the  prop- 
erty ;  that  intoxicating  liquors  are  property,  and  are  subjects  of  ex- 
change, barter,  and  traffic  like  any  other  commodity  in  which  a  right  of 
property  exists  ;  that,  inasmuch  as  the  power  to  regulate  commerce  was 

1  National  Bank  v.  County  of  Yankton,  loi  U.  S.  129,  133. 

2  Endleman  v.  United  States,  57  U.  S.  App.  i,  86  Fed.  Rep.  456, 458. 


committed  to  Congress  to  relieve  it  from  all  restrictions,  Congress  cannot 
itself  impose  restrictions  upon  commerce  by  prohibiting  the  sale  of  a  par- 
ticular commodity ;  that  if  Congress  has  the  power  to  regulate  the  sale  of 
intoxicating  liquors  within  the  Territories  as  a  police  regulation,  it  can 
only  enact  laws  applicable  to  all  the  Territories  alike.  The  answer  to 
these  and  other  like  objections  urged  in  the  brief  of  counsel  for  defendant 
is  found  in  the  now  well-established  doctrine  that  the  Territories  of  the 
United  States  are  entirely  subject  to  the  legislative  authority  of  Congress. 
They  are  not  organized  under  the  Constitution,  nor  subject  to  its  complex 
distribution  of  the  powers  of  government  as  the  organic  law,  but  are  the 
creation  exclusively  of  the  legislative  department  and  subject  to  its  super- 
vision and  control.  Benner  v.  Porter,  9  How.  235.  242.  The  United 
States,  having  rightfully  acquired  the  territory,  and  being  the  only  govern- 
ment which  can  impose  laws  upon  them,  has  the  entire  dominion  and 
sovereignty,  national  and  municipal.  Federal  and  State.  Insurance  Co. 
V.  Canter,  i  Pet.  511,  542  ;  Cross  v.  Harrison,  16  How.  164,  193  ;  Na- 
tional Bank  v.  Yankton  Co.,  loi  U.  S.  129,  133  ;  Murphy  v.  Ramsey,  114 
U.  S.  15,  44  ;  Mormon  Church  v.  U.  S.,  136  U.  S.  1,  42,  43  ;  McAllister 
V.  U.  S.  141  U.  S.  174,  181  ;  Shively  v.  Bowlby,  152  U.  S.  i,  48.  Under 
this  full  and  comprehensive  authority,  Congress  has  unquestionably  the 
power  to  exclude  intoxicating  liquors  from  any  or  all  of  its  Territories,  or 
limit  their  sale  under  such  regulations  as  it  may  prescribe.  It  may  legis- 
late in  accordance  with  the  special  needs  of  each  locality,  and  vary  its 
regulations  to  meet  the  conditions  and  circumstances  of  the  people. 
Whether  the  subject  elsewhere  would  be  a  matter  of  local  police  regulation, 
or  within  State  control  under  some  other  power,  it  is  immaterial  to  con- 
sider. In  a  Territory  all  the  functions  of  government  are  within  the  legis- 
lative jurisdiction  of  Congress,  and  may  be  exercised  through  a  local 
government  or  directly  by  such  legislation  as  we  have  now  under 
consideration." 

This  passage  is  to  be  read  as  an  affirmation  of  the  unquestionably 
broad  and  exclusive  power  of  Congress  in  administering  the  Terri- 
tories, but  not  of  a  right  to  deal  arbitrarily  with  persons  and  prop- 
erty therein,  for  it  will  be  shown  that  the  Supreme  Court  recognizes 
the  Territories  as  part  of  the  United  States  for  most  important 
purposes,  and  confirms  to  their  people  the  great  constitutional 
guarantees. 

The  words  "  United  States"  in  the  Constitution  may  be  construed 
in  some  cases  to  refer  to  the  States  alone.  For  example,  territorial 
courts  are  not  technically  courts  of  the  "  United  States."  ^     Pre- 

1  Benner  v.  Porter,  9  Howard,  242. 


sumably,  however,  the  "  United  States  "  is,  in  the  language  of  Chief 
Justice  Marshall,  "  the  name  given  to  our  great  republic,  which  is 
composed  of  States  and  Territories.  The  District  of  Columbia  or 
the  territory  west  of  the  Missouri  is  not  less  within  the  United 
States  than  Maryland  or  Pennsylvania,"  and,  he  added,  "  it  is  not 
less  necessary,  on  the  principles  of  our  Constitution,  that  uni- 
formity in  the  imposition  of  imposts,  duties,  and  excises  should  be 
observed  in  the  one,  than  in  the  other."  ^ 

The  general  and  unqualified  prohibitions  imposed  upon  Congress 
are  absolute  denials  of  power  without  regard  to  place. 

Said  Chief  Justice  Taney  in  Scott  v.  Sandford  :  ^  — 

"  No  one,  we  presume,  will  contend  that  Congress  can  make  any  law 
in  a  Territory  respecting  the  establishment  of  religion,  or  the  free  exercise 
thereof,  or  abridging  the  freedom  of  speech  or  of  the  press,  or  the  right  of 
the  people  of  the  Territory  peaceably  to  assemble,  and  to  petition  the 
Government  for  the  redress  of  grievances. 

"  Nor  can  Congress  deny  to  the  people  the  right  to  keep  and  bear  arms, 
nor  the  right  to  trial  by  jury,  nor  compel  any  one  to  be  a  witness  against 
himself  in  a  criminal  proceeding. 

"  These  powers,  and  others,  in  relation  to  rights  of  person,  which  it  is  not 
necessary  here  to  enumerate,  are,  in  express  and  positive  terms,  denied  to 
the  General  Government ;  and  the  rights  of  private  property  have  been 
guarded  with  equal  care.  Thus  the  rights  of  property  are  united  with  the 
rights  of  person,  and  placed  on  the  same  ground  by  the  Fifth  Amendment 
to  the  Constitution,  which  provides  that  no  person  shall  be  deprived  of  life, 
liberty,  and  property,  without  due  process  of  law.  And  an  Act  of  Congress 
which  deprives  a  citizen  of  the  United  States  of  his  liberty  or  property, 
merely  because  he  came  himself  or  brought  his  property  into  a  particular 
Territory  of  the  United  States,  and  who  had  committed  no  offence  against 
the  laws,  could  hardly  be  dignified  with  the  name  of  due  process  of  law. 

"  So,  too,  it  will  hardly  be  contended  that  Congress  could  by  law  quarter 
a  soldier  in  a  house  in  a  Territory  without  the  consent  of  the  owner,  in 
time  of  peace;  nor  in  time  of  war,  but  in  a  manner  prescribed  by  law. 
Nor  could  they  by  law  forfeit  the  property  of  a  citizen  in  a  Territory  who 
was  convicted  of  treason,  for  a  longer  period  than  the  life  of  the  person 
convicted  ;  nor  take  private  property  for  public  use  without  just  compen- 
sation." 

A  quotation  from  the  Dred  Scott  Case  is  apt  to  be  discredited  in 
many  quarters  because  of  resentment  against  the  decision,  but  on 

1  Loughborough  v.  Blake,  5  Wheaton,  317. 

2  19  Howard,  393,  450. 


8 

this  point  Justice  Curtis  concurred  with  the  court  in  his  dissenting 
opinion.  He  said  of  the  power  of  Congress  over  Territories,  "  in 
common  with  all  the  other  legislative  powers,  it  finds  limits  in  the 
express  prohibitions  on  Congress  not  to  do  certain  things  ;  that  in 
the  exercise  of  the  legislative  power  Congress  cannot  pass  an  ex 
post  facto  law  or  bill  of  attainder,  anjl  so  in  respect  to  each  of  the 
other  prohibitions  contained  in  the  Constitution  "  (p.  614).  And 
he  agreed  further  that  property  within  the  Territories  was  pro- 
tected by  the  Fifth  Amendment  (p.  624).  More  restrained  in 
expression,  but  equally  to  the  point,  is  Justice  Bradley's  opinion: 
"  Doubtless  Congress,  in  legislating  for  the  Territories  would  be 
subject  to  those  fundamental  limitations  in  favor  of  personal  rights 
which  are  formulated  in  the  Constitution  and  its  amendments; 
but  these  limitations  would  exist,  rather  by  inference  and  the 
general  spirit  of  the  Constitution,  from  which  Congress  derives 
all  its  powers,  than  by  any  other  express  and  direct  application 
of  its  provisions."  ^ 

In  another  opinion  of  the  Supreme  Court  we  read,  "  Congress  is 
supreme  [over  the  Territories],  and  for  the  purposes  of  this  depart- 
ment of  its  governmental  authority  has  all  the  powers  of  the  people 
of  the  United  States  except  such  as  have  been  expressly  or  by  impli- 
cation reserved  in  the  prohibitions  of  the  Constitution."^ 

In  Thompson  v.  Utah  ^  it  is  held,  "  That  the  provisions  of  the 
Constitution  of  the  United  States  relating  to  the  right  of  trial  by 
jury  in  suits  at  common  law  apply  to  the  Territories  of  the  United 
States  is  no  longer  an  open  question,"  ^  and  further,  "  it  is  equally 
beyond  question  that  the  provisions  of  the  National  Constitution 
relating  to  trials  by  jury  for  crimes  and  to  criminal  prosecutions 
apply  to  the  Territories  of  the  United  States."  ^ 

In  Callan  v.  Wilson  '^  a  person  convicted  in  the  Police  Court  of 
the  District  of  Columbia  without  the  interposition  of  a  jury  was 
ordered  to  be  discharged  from  custody,  and  the  Court  said  (p.  550)  : 
"There  is  nothing  in  the  history  of  the  Constitution  or  of  the  orig- 
inal amendments  to  justify  the  assertion  that  the  people  of  the 


1  Mormon  Church  i'.  United  States,  136  U.  S.  i,  44. 

2  National  Baniv  71.  County  of  Yankton,  loi  U.  S.  129,  133. 

3  170  U.  S.  343,  346. 

*  See  American  Pub.  Co.  v.  Fisher,  160  U.  S.  464,  468;  Springville  z/.  Thomas,  166 
U.  S.  707. 

^  See  also  Reynolds  v.  United  States,  98  U.  S.  145,  154. 

•^  127  U.  S.  540. 


District  may  be  lawfully  deprived  of  the  benefit  of  any  of  the  con- 
stitutional guarantees  of  life,  liberty,  and  property,  especially  of  the 
right  of  trial  by  jury  in  criminal  cases.  .  .  .  We  cannot  think  that 
the  people  of  the  District  have,  in  that  regard,  less  rights  than  those 
accorded  to  the  people  of  the  Territories  of  the  United  States." 

What  is  the  status  of  the  inhabitants  of  territory  lying  within 
the  United  States,  but  without  the  States  ? 

The  Constitution  provides  that  "  all  persons  born  or  naturalized  in 
the  United  States,  and  subject  to  the  jurisdiction  thereof,  are  citi- 
zens of  the  United  States  and  of  the  States  wherein  they  reside." 
In  the  Slaughterhouse  Cases  ^  the  Court  said  of  this  provision  : 
"  The  distinction  between  citizenship  of  the  United  States  and  citi- 
zenship of  a  State  is  clearly  recognized  and  established.  Not  only 
may  a  man  be  a  citizen  of  the  United  States  without  being  a  citizen 
of  a  State,  but  an  important  element  is  necessary  to  convert  the 
former  into  the  latter.  He  must  reside  within  the  State  to  make 
him  a  citizen  of  it ;  but  it  is  only  necessary  that  he  should  be  born 
or  naturalized  in  the  United  States  to  be  a  citizen  of  the  Union. 
It  is  quite  clear  then  that  there  is  a  citizenship  of  the  United  States 
and  a  citizenship  of  a  State,  which  are  distinct  from  each  other,  and 
which  depend  upon  different  characteristics  or  circumstances  in  the 
individual." 

In  a  recent  opinion  the  Supreme  Court  said  :  "  The  Fourteenth 
Amendment  affirms  the  ancient  and  fundamental  rule  of  citizenship 
by  birth  within  the  territory,  in  the  allegiance  and  under  the  protec- 
tion of  the  country  including  all  children  here  born  of  resident  aliens, 
with  the  exceptions  or  qualifications  (as  old  as  the  rule  itself)  of 
children  of  foreign  sovereigns  or  their  ministers,  or  born  on  foreign 
public  ships  or  of  enemies  within  and  during  a  hostile  occupation 
of  part  of  our  territory,  and  with  the  single  additional  exception  of 
children  of  members  of  Indian  tribes  owing  direct  allegiance  to  their 
several  tribes."  ^ 

We  will  consider  next  the  status  of  persons  residing  within  ter- 
ritory at  the  time  of  its  annexation  to  the  United  States. 

It  is  a  rule  of  public  law  that  a  state  by  annexing  territory  be- 
comes entitled  to  the  allegiance  of  its  people.  In  the  words  of  Chief 
Justice  Marshall,  "The  relations  of  the  inhabitants  with  their  for- 


1  i6  V^^all.  36,  72.  2  United  States  v.  Wong  Kim  Ark,  169  U.  S.  649,  653. 


lO 

mer  sovereign  are  dissolved,  and  new  relations  are  created  between 
them  and  the  government  which  has  acquired  their  territory.  The 
same  act  which  transfers  their  territory  transfers  the  allegiance  of 
those  who  remain  in  it."  ^  And  the  right  to  allegiance  is  quite  as 
substantial  where  territory  is  annexed  by  conquest  unconfirmed  by 
treaty.^ 

There  is  no  occasion  for  relaxing  the  rule  when  the  identity  of 
the  ceding  or  conquered  state  is  extinguished  by  the  transfer  of 
its  entire  territory.  But  when  the  land  transferred  is  a  part  only 
of  a  national  domain,  a  regard  for  the  ties  of  nationality  and  a  re- 
luctance to  claim  an  unwilling  allegiance  may  lead  the  new  sover- 
eign to  allow  the  inhabitants  who  wish  to  retain  their  old  allegiance 
a  suitable  time  within  which  they  may  settle  their  affairs  and  depart. 
This  privilege  of  removal  was  accorded  by  the  United  States  in 
the  treaties  by  which  they  acquired  Louisiana,  Florida,  California, 
and  Alaska. 

Are  the  inhabitants  of  the  annexed  territory  whose  allegiance  is 
transferred  to  the  United  States  citizens  thereof  .-' 

The  Sixth  Article  of  the  Treaty  with  Spain  of  1819  reads: 
"  The  inhabitants  of  the  territories  which  His  Catholic  Majesty 
cedes  to  the  United  States,  by  this  treaty,  shall  be  incorpo- 
rated in  the  Union  of  the  United  States,  as  soon  as  may  be 
consistent  with  the  principles  of  the  Federal  Constitution,  and 
admitted  to  the  enjoyment  of  all  the  privileges,  rights,  and  immu- 
nities of  the  citizens  of  the  United  States." 

This  Article  as  construed  by  Chief  Justice  Marshall  "  admits 
the  inhabitants  of  Florida  to  the  enjoyment  of  the  privileges, 
rights,  and  immunities  of  the  citizens  of  the  United  States."^ 
And  he  added  :  "  It  is  unnecessary  to  inquire  whether  this  is 
not  their  condition  independent  of  stipulation."  This  inquiry  is 
now  pertinent.  Does  not  the  citizen  or  subject  of  a  foreign  State 
whose  allegiance  has  been  transferred  to  the  United  States,  by  the 
transfer  of  the  territory  of  his  residence,  become  a  citizen  of  the 
United  States,  whether  the  transfer  be  consummated  by  cession  or 
by  conquest?  In  other  words,  is  not  every  person  from  whom  the 
United  States  claims  full  allegiance  a  citizen?  The  Supreme 
Court  has  not  been  required  to  decide  this  question,  but  it  seems 
that  one  owing  full  allegiance  to  the   United  States,  and  being 

1  American  Ins.  Co.  z^.  Canter,  i  Peters,  511,  542. 

2  See  Hall,  International  Law,  §  206;  Dana's  Wheaton,  page  435,  note. 
"  American  Ins.  Co.  v.  Canter,  i  Peters,  511,  542. 


II 

therefore  subject  to  all  the  duties  and  responsibilities  of  a  citizen, 
should  have  a  citizen's  rights.  There  are  now  within  the  United 
States  "citizens,"  "wards"  (Indians),  and  "aliens."  Is  there 
room  for  "subjects"  who  will  be  burdened  with  duties  without 
enjoying  compensatory  rights .'' 

Citizens  of  the  United  States  residing  without  the  limits  of  States 
have  not  the  constitutional  right  to  be  represented  in  Congress, 
which  must  nevertheless  lay  upon  them  the  taxes  required  by  the 
Constitution  to  be  "  uniform  throughout  the  United  States."  Here 
is  taxation  without  representation, —  one  of  the  major  grievances 
of  the  American  Colonies  against  Great  Britain.  In  reply  to  the 
charge  that  the  United  States  maintain  a  condition  that  the  Colo- 
nies denounced.  Chief  Justice  Marshall  said :  "  The  difference 
between  requiring  a  continent  with  an  immense  population  to  sub- 
mit to  be  taxed  by  a  government  having  no  common  interest  with 
it,  separated  from  it  by  a  vast  ocean  and  associated  with  it  by  no 
common  feelings  ;  and  permitting  the  representatives  of  the  Amer- 
ican people  under  the  restrictions  of  our  constitution  to  tax  a  part 
of  the  society  which  is  either  in  a  state  of  infancy  advancing  to 
manhood,  looking  forward  to  complete  equality  so  soon  as  that 
state  of  manhood  shall  be  attained,  as  is  the  case  with  the  terri- 
tories, or  which  has  voluntarily  relinquished  the  right  of  represen- 
tation and  has  adopted  the  whole  body  of  Congress  for  its  legitimate 
government,  as  is  the  case  with  the  District,  is  too  obvious  not  to 
present  itself  to  the  minds  of  all."  ^ 

Not  only  are  citizens  not  residing  in  States  without  a  voice  in 
federal  affairs,  they  are  without  constitutional  right  to  regulate  their 
own.  The  entire  sovereignty  over  territory  outside  of  the  States  is 
vested  in  the  Federal  Government.  This  position  has  not  been 
always  conceded.  It  was  questioned  in  the  Dred  Scott  Case,^  and 
Senator  Douglas  declared  that  the  people  of  the  Territories  pos- 
sessed sufficient  "  popular  sovereignty "  to  decide  for  themselves 
whether  slavery  should  exist  within  their  respective  communities. 
The  doctrine  of  popular  sovereignty  in  the  Territories  is  incom- 
patible with  the  fundamental  conception  of  the  Union  of  States,  and 
is  thoroughly  discredited.'^ 

1  Loughborough  v.  Blake,  5  Wheaton,  317,  324. 

2  19  Howard,  293;  see  especially  Justice  Campbell's  opinion,  page  501. 

3  See  National  Bank  v.  County  of  Yankton,  loi  U.  S.  129,  133;  Murphy  t>.  Ramsey, 
114  U.  S.  15,  44;  Mormon  Church  v.  United  States,  136  U.  S.  i,  44. 


12 

The  right  of  Congress  to  govern  the  Territories  is  formally  op- 
posed to  the  principle  that  governments  "  receive  their  just  powers 
from  the  consent  of  the  governed,"  but  it  is  justified  by  reasons  like 
those  by  which,  as  we  have  seen,  Marshall  justified  taxation  with- 
out representation.  Although  Congress  cannot  surrender  its  supre- 
macy, it  usually  concedes  as  large  a  measure  of  home  rule  to  the 
Territories  as  is  expedient.  In  the  language  of  Chief  Justice  Chase, 
"  The  theory  upon  which  the  various  governments  for  portions  of 
the  United  States  have  been  organized  has  ever  been  that  of  leav- 
ing to  the  inhabitants  all  the  power  of  self-government  consistent 
with  the  supremacy  and  supervision  of  national  authority  and  with 
certain  fundamental  principles  established  by  Congress."  ^  Alaska 
is  an  exception  to  the  rule  because  of  its  meagre  population.  In- 
deed, many  years  elapsed  before  Congress  found  it  advisable  to 
constitute  it  a  "civil  and  judicial  district." 

Upon  reviewing  the  opinions  of  the  Supreme  Court,  it  is  con- 
fidently affirmed  that  the  political  control  of  all  territory  of  the 
United  States  outside  of  the  States  is  vested  absolutely  in  Con- 
gress, which  may  prescribe  any  form  of  government  and  grant  or 
withhold  political  privileges  to  the  people  at  discretion.  But  it  is 
affirmed  with  equal  confidence,  because  upon  the  same  authority, 
that  these  Americans  possess  the  same  personal  and  property 
rights  that  the  people  of  the  States  enjoy.  In  the  language  of  the 
Supreme  Court :  "  The  personal  and  civil  rights  of  the  inhabitants 
of  the  Territories  are  secured  to  them,  as  to  other  citizens,  by  the 
principles  of  constitutional  liberty  which  restrain  all  the  agencies 
of  government.  State  and  National;  their  political  rights  are  fran- 
chises which  they  hold  as  privileges  in  the  legislative  discretion  of 
the  Congress  of  the  United  States."  ^ 

Bearing  in  mind  the  distinction  between  political  privileges  and 
personal  rights,  we  may  comprehend  the  effective  meaning  of  two 
comments  made  by  distinguished  jurists  upon  the  constitutional 
provision  empowering  Congress  "  to  dispose  of  and  make  all  need- 
ful rules  and  regulations  respecting  the  territory  or  other  property 
of  the  United  States."  Chancellor  Kent  said:  "  It  would  seem, 
from  these  various  congressional  regulations  of  the  territories 
belonging  to  the  United  States  [Territorial  Regulation  Acts]  that 
Congress  have  supreme  power  in  the  government  of  them,  depend- 

1  Clinton  v.  Englebrecht,  13  Wall.  434,  441. 
-  Murphy  v.  Ramsey,  114  U.  S.  15,  44. 


ing    on    the  exercise  of    their  sound   discretion.     That  discretion 
has  hitherto  been  exercised  in  wisdom  and  good  faith,  and  with  an 
anxious  regard  for  the  security  of  the  rights  and  privileges  of  the 
inhabitants,  as  defined  and  declared  in  the  ordinance  of  July,  1787, 
and  in  the  Constitution  of  the  United   States.     '  All  admit,'  said 
Chief  Justice  Marshall,  '  the  constitutionality  of  a  territorial  gov- 
ernment.'    But  neither  the  District  of  Columbia,  nor  a  territory, 
is  a  state,  within  the  meaning  of  the  Constitution,  or  entitled  to 
claim  the  privileges  secured  to  the  members  of  the  Union.     This 
has  been  so  adjudged  by  the  Supreme  Court.     Nor  will  a  writ  of 
error  or  appeal  lie  from  a  territorial  court  to  the  Supreme  Court, 
unless   there  be  a  special  statute  provision  for  the  purpose.     If, 
therefore,  the  government  of  the  United  States  should  carry  into 
execution  the  project  of  colonizing  the  great  valley  of  the  Columbia 
or  Oregon  River,  to  the  west  of  the  Rocky  Mountains,  it  would 
afford  a  subject  of  grave  consideration,  what  would  be  the  future 
civil  and  political  destiny  of  that  country.     It  would  be  a  long  time 
before  it  would  be  populous  enough  to  be  created  into  one  or  more 
independent  states  ;   and  in  the  mean  time,  upon  the  doctrine  taught 
by  the  acts  of  Congress,  and  even  by  the  judicial  decisions  of  the 
Supreme  Court,  the  colonists  would  be  in  a  state  of  the  most  com- 
plete subordination,  and  as  dependent  upon  the  will  of  Congress 
as  the  people  of  this  country  would  have  been  upon  the  king  and 
parliament  of  Great  Britain,   if  they  could  have  sustained  their 
claim  to  bind  us  in  all  cases  whatsoever.     Such  a  state  of  absolute 
sovereignty  on  the  one  hand,  and  of  absolute  dependence  on  the 
other,  is  not  congenial  with  the  free  and  independent  spirit  of  our 
native   institutions;    and    the  establishment  of  distant   territorial 
governments,  ruled  according  to  will  and  pleasure,  would  have  a 
very  natural  tendency,  as  all  proconsular  governments  have  had, 
to  abuse  and  oppression."  ^     And  Judge  Story  said  :  "  The  power 
of  Congress  over  the  public  territory  is  clearly  exclusive  and  uni- 
versal ;   and  their  legislation  is  subject  to  no  control,  but  is  absolute 
and  unlimited,  unless  §0  far  as  it  is  affected  by  stipulations  in  the 
cessions,  or  by  the  ordinance  of   1787,  under  which  any  part  of  it 
has  been  settled."  ^ 

If  these  comments  have  as  broad  a  meaning  as  can  be  inferred 
from  their  texts,  they  are  discredited  by  the  opinions  of  the 
Supreme    Court.     But   the  suggestion    that   a  bald   despotism  is 

1  Commentaries,  i.  385.  ^  Commentaries,  Section  132S. 


14 

possible  in  any  part  of  the  republic  should  not  be  imputed  to  the 
great  commentators.  Their  comments  should  be  considered  to- 
gether because  Story's  refers  by  a  note  to  Kent's,  and  they  may  be 
construed  to  affirm  simply  the  plenary  power  of  Congress  in  the 
political  administration  of  the  Territories.  Neither  Kent  nor  Story 
can  be  fairly  quoted  as  denying  personal  and  civil  rights  to  any  of 
the  American  people.  And  we  refer  to  these  rights  only  when  we 
assert  that  the  general  guarantees  and  prohibitions  of  the  Consti- 
tution are  as  broad  as  the  republic  —  not  allowing  to  people  living 
without  the  States  any  political  franchise,  any  right  of  self-govern- 
ment, but  assuring  to  them  the  rights  of  life,  liberty,  and  property 
as  they  are  defined  by  the  Constitution. 


Part  Second. 

The  foregoing  remarks  on  the  constitutional  aspects  of  annex- 
ation bear  generally  upon  the  several  territorial  questions  growing 
out  of  the  war  with  Spain,  and  especially  upon  the  question  of  the 
Philippines. 

I. 

The  United  States  are,  as  their  name  implies,  a  Union  of  States, 
and  although  in  contemplation  of  law  they  may  add  to  their  domain 
without  restriction  as  to  place,  each  annexation  should  have  for  its 
object,  be  it  near  or  remote,  the  creation  of  self-supporting  and 
mutually  supporting  commonwealths.  This  conception  of  the  re- 
public as  a  union  of  States  is  consistent  with  the  nationality  of 
the  American  people,  and  it  must  be  maintained  if  we  are  to  con- 
template free  institutions  throughout  our  land,  for  statehood  is  the 
single  and  conclusive  mark  of  the  ability  of  communities  to  govern 
themselves. 

The  United  States,  therefore,  ought  not  to  annex  a  country  evi- 
dently and  to  all  appearances  irredeemably  unfit  for  statehood  be- 
cause of  the  character  of  its  people  and  where,  the  climatic  conditions 
forbid  the  hope  that  Americans  will  migrate  to  it  in  sufficient  num- 
bers to  elevate  its  social  conditions  and  ultimately  justify  its  admis- 
sion as  a  State.  And  when  a  project  for  annexing  territory  is 
coupled  with  a  disclaimer  of  any  intention  of  admitting  it  as  a  State 
now  or  hereafter,  when  this  disclaimer  is  necessary  in  order  to 
secure  a  favorable  consideration,  the  project  is  opposed  to  the  spirit 
of  the  Constitution. 


15 

The  Philippine  islanders  are,  and  are  likely  to  remain,  unfit  for 
statehood.  Indeed,  their  inferior  estate  is  admitted  by  the  plea 
that  we  should  embrace  them  because  they  are  not  fit  even  to  govern 
themselves.  Nor  can  we  look  forward  to  the  peopling  of  the  islands 
by  Americans,  for,  whatever  may  be  meant  by  the  warning  that 
"our  frontiers  are  gone,"  and  that  we  must  provide  land  for  "  sur- 
plus population,"  the  Philippines  offer  no  inducements  to  American 
home-seekers.  But  it  is  argued  that  the  Philippine  project  is  in 
line  with  previous  annexations  which  commit  us  to  the  proposition 
that  statehood  is  not  the  necessary  objective  of  annexed  territory. 
This  argument  is  worthless,  and  its  illustrations  are  unimportant. 

It  is  true  that  New  Mexico  and  Arizona  are  not  yet  States,  but 
the  anticipation  of  statehood  in  which  their  domain  was  acquired 
will  one  day  be  realized.  The  purchase  of  Alaska  was  theoretically 
a  deliberate  departure  from  a  sound  rule,  but  it  was  in  line  with  a 
policy  approving  the  withdrawal  of  European  sovereignty  from 
America,  and,  after  all,  the  republic  is  not  actually  prejudiced  by 
holding  a  sparsely  peopled  territory  that  will  probably  become  a 
veritable  waste  when  the  fur-bearing  animals  are  exterminated  and 
the  gold  is  carried  away.  The  acquisition  of  Hawaii  was  precipi- 
tated by  the  very  war  that  has  provoked  the  Philippine  project  to 
which  it  is  too  closely  related  to  serve  as  a  precedent,  and,  besides, 
the  citizens  in  Hawaii  may  yet  acquire  a  constitutional  right  of 
self-government  by  the  incorporation  of  the  islands  with  a  Pacific 
State.  As  for  the  guano  islet  of  Navassa,  which  appertains  to  the 
United  States,  we  may  decline  to  perceive  a  likeness  between 
lighting  on  a  vacant  manure  heap  and  seizing  one  of  the  great- 
est of  archipelagoes. 

II. 

The  disclaimer  of  any  intention  of  carving  new  States  out  of  the 
Philippines,  whatever  it  may  be  worth,  is  not  sufficient  to  render 
annexation  palatable.  It  is  supplemented  by  the  announcement 
that  the  Constitution  covers  the  States  only,  and  that  the  Philip- 
pines can  be  ruled  with  a  free  hand. 

A  readiness  to  rule  the  Philippines  arbitrarily  is  an  unseemly 
feature  of  the  annexation  programme,  not  mitigated  by  the  promise 
that  justice  and  mercy  will  temper  force.  It  will  be  recalled  that  a 
strong  objection  to  the  original  Constitution  was  the  lack  of  a  Bill 
of  Rights,  and  that  the  omission  was  rectified  by  the  adoption  of  the 
first  ten  amendments.     Can  it  be  said  that  these  amendments  are 


i6 

superfluous  or  that  the  barriers  we  built  for  self-protection  are 
not  needed  for  the  protection  of  Asiatics  ?  Perhaps  some  of  the 
amendments  would  be  inappropriate  in  Asia,  but  we  cannot  pick 
and  choose  among  them.  Perhaps  constitutional  government  in 
the  Philippines  would  be  a  failure,  but  if  Asiatics  can  be  ruled  only 
by  a  system  which  places  their  lives,  liberties,  and  property  at  the 
disposition  of  the  government,  the  work  is  unrepublican  and  not 
in  our  line. 

I  have  shown  that  the  opinions  of  the  Supreme  Court  affirm 
the  proposition  that  the  Territories  are  within  the  purview  of  the 
Constitution,  and  this  will  be  the  position  of  the  Philippines  if  they 
are  annexed,  for  they  cannot  be  acquired  in  a  way  that  will  differen- 
tiate them  organically  from  our  present  possessions.  The  domain 
of  our  republic  is  divided  into  two  primary  classes  only,  —  land  sub- 
ject to  the  jurisdiction  of  States  and  land  not  so  subject.  Congress 
may  divide  its  possessions  into  political  districts,  but  it  cannot 
extend  the  Constitution  to  or  withhold  it  from  each  district  at 
pleasure.  The  Constitution  is  not  at  the  disposition  of  Congress. 
It  is  superior  to  Congress.  It  is  a  self-extending  law,  and  so  far  as 
it  covers  our  present  possessions  must  cover  future  ones.  The 
proposition  has  an  important  bearing  upon  a  commercial  policy  in 
respect  of  the  islands  and  upon  the  status  of  the  islanders. 

It  is  asserted  that  having  annexed  the  Philippines  we  would 
not  be  obliged  to  treat  them  as  commercially  a  part  of  the  United 
States,  but  could,  for  example,  prescribe  special  customs  regulations 
for  them.  Indeed,  we  hear  the  prediction  that  we  would  open  the 
islands  to  the  world's  trade  and  help  Great  Britain  open  the  door 
to  China.  So  far  as  the  assertion  claims  the  support  of  law,  it 
appears  to  rest  upon  the  following  passage  from  Chief  Justice 
Taney's  opinion  in  Fleming  v.  Page.^  The  Chief  Justice  after 
deciding  that  a  port  in  the  belligerent  occupation  of  the  United 
States  is  a  foreign  port  in  respect  of  our  tariff  laws  said  :  — 

"  This  construction  of  the  revenue  laws  has  been  uniformly 
given  by  the  administrative  department  of  the  government  in 
every  case  that  has  come  before  it.  And  it  has,  indeed,  been 
given  in  cases  where  there  appears  to  have  been  stronger  ground 
for  regarding  the  place  of  shipment  as  a  domestic  port.  P'or  after 
Florida  had  been  ceded  to  the  United  States,  and  the  forces  of  the 
United  States  had  taken  possession  of  Pensacola,  it  was  decided 

'  9  Howard,  603,  616. 


17 

by  the  Treasury  Department  that  goods  imported  from  Pensacola 
before  an  Act  of  Congress  was  passed  erecting  it  into  a  collection 
district,  and  authorizing  the  appointment  of  a  collector,  were  liable 
to  duty.  That  is,  that  although  Florida  had,  by  cession,  actually 
become  a  part  of  the  United  States,  and  was  in  our  possession, 
yet,  under  our  revenue  laws,  its  ports  must  be  regarded  as  foreign 
until  they  were  established  as  domestic  by  Act  of  Congress  ;  and 
it  appears  that  this  decision  was  sanctioned  at  the  time  by  the 
Attorney-General  of  the  United  States,  the  law  officer  of  the 
government.  And  although  not  so  directly  applicable  to  the  case 
before  us,  yet  the  decisions  of  the  Treasury  Department  in  rela- 
tion to  Amelia  Island,  and  certain  ports  in  Louisiana,  after  that 
province  had  been  ceded  to  the  United  States,  were  both  made 
upon  the  same  grounds.  And  in  the  latter  case,  after  a  custom- 
house had  been  established  by  law  at  New  Orleans,  the  collector 
at  that  place  was  instructed  to  regard  as  foreign  ports  Baton 
Rouge  and  other  settlements  still  in  the  possession  of  Spain, 
whether  on  the  Mississippi,  Iberville,  or  the  sea-coast.  The 
Department  in  no  instance  that  we  are  aware  of,  since  the  estab- 
lishment of  the  government,  has  ever  recognized  a  place  in  a  newly 
acquired  country  as  a  domestic  port,  from  which  the  coasting 
trade  might  be  carried  on,  unless  it  had  been  previously  made  so 
by  Act  of  Congress. 

"  The  principle  thus  adopted  and  acted  upon  by  the  executive 
department  of  the  government  has  been  sanctioned  by  the  deci- 
sions in  this  court  and  the  circuit  courts  whenever  the  question 
came  before  them.  We  do  not  propose  to  comment  upon  the 
different  cases  cited  in  the  argument.  It  is  sufficient  to  say  that 
there  is  no  discrepancy  between  them.  And  all  of  them,  so  far 
as  they  apply,  maintain  that  under  our  revenue  laws  every  port 
is  regarded  as  a  foreign  one,  unless  the  custom-house  from  which 
the  vessel  clears  is  within  a  collection  district  established  by  Act 
of  Congress,  and  the  officers  granting  the  clearance  exercise  their 
functions  under  the  authority  and  control  of  the  laws  of  the 
United  States." 

Conceding  the  highest  authority  and  the  widest  significance 
to  this  passage,  it  contemplates  merely  a  transitory  condition, — 
a  period  between  the  passing  of  an  old  regime  and  the  complete 
establishment  of  a  new  one  under  the  auspices  of  Congress,  during 
which  administrative  authority  is  perforce  supreme.  In  these 
circumstances    the    President    may   levy    customs    duties    in    the 


annexed  territory,  and  we  grant,  for  the  sake  of  argument,  that 
he  may  levy  them  at  discretion.  We  will  assume,  for  the  sake  of 
argument,  that  duties  may  be  collected  on  goods  brought  hither 
from  the  new  territory.  But  these  actions  are  abnormal  and  pro- 
visional. They  rest  wholly  upon  the  inaction  of  Congress.  Of 
course  Congress  cannot  be  compelled  to  organize  customs  dis- 
tricts in  new  territory,  and  delay  may  be  inevitable  as,  for  example, 
when  land  is  annexed  at  a  special  session  of  the  Senate.  Nor  is 
Congress  necessarily  neglectful  in  extending  tariff  laws  deliber- 
ately. But,  making  allowance  for  unimportant  delays,  it  will  appear 
that  Congress  is  obliged  by  the  letter  and  spirit  of  the  Constitution 
to  impose  uniform  duties  within  the  political  limits  of  the  United 
States.  They  who  would  annex  the  Philippines  in  the  hope  that 
the  islands  will  continue  to  be  commercially  separate  from  the 
United  States  prefigure  a  wilful  and  persistent  neglect  of  duty 
on  the  part  of  Congress,  and  in  consequence  of  this  neglect  the 
permanent  regulation  of  Philippine  customs  by  the  President. 
Congress  would  not  long  permit  the  President  to  levy  duties  at  his 
pleasure  within  territory  subject  to  its  proper  jurisdiction. 

Unless  Chief  Justice  Marshall  has  erred  profoundly,  Congress 
could  not  adopt  a  customs  policy  peculiar  to  the  Philippines,  for  in 
Loughborough  v.  Blake, ^  he  said  with  regard  to  the  declaration  in 
the  Constitution  that  "all  duties,  imposts,  and  excises  shall  be 
uniform  throughout  the  United  States,"  "  The  District  of  Colum- 
bia, or  the  territory  west  of  the  Missouri,  is  not  less  within  the 
United  States  than  Maryland  or  Pennsylvania;  and  it  is  not  less 
necessary,  on  the  principles  of  our  Constitution,  that  uniformity  in 
the  imposition  of  imposts,  duties,  and  excises,  should  be  observed 
in  the  one,  than  in  the  other,"  and  again  (page  325),  "The  Con- 
stitution not  only  allows,  but  enjoins  the  government  to  extend  the 
ordinary  revenue  system  to  this  district"  (of  Columbia). 

Loughborough  v.  Blake  affirmed  the  power  of  Congress  to  levy 
a  direct  tax  within  the  District  of  Columbia,  but  the  opinion  con- 
tains a  masterly  declaration  of  the  great  principle  that  all  the  ter- 
ritory within  the  jurisdiction  of  Congress  is  commercially  one 
country. 

Should  the  courts  affirm  that  all  persons  owing  full  allegiance  to 
the  United  States  are  citizens  thereof,  the  annexation  of  the  Philip- 
pines would  naturalize  collectively  all  islanders  answering  to  this 

1  5  Wheaton,  317. 


19 

description.  Certainly  all  islanders  born  after  annexation  and 
within  the  allegiance  of  the  United  States  would  be  citizens.  (See 
case  of  Wong  Kim  Ark,  ante,  page  9.) 

The  opinion  in  the  case  of  Wong  Kim  Ark  ^  excepts  from  the  rule 
of  citizenship  by  birth  Indians  "  owing  direct  allegiance  to  their  sev- 
eral tribes."  In  Elk  ^^  Wilkins '^  the  Court  said:  "Indians  born 
within  the  territorial  limits  of  the  United  States,  members  of,  and 
owing  immediate  allegiance  to,  one  of  the  Indian  tribes  (an  alien 
though  dependent  power),  although  in  a  geographical  sense  born 
in  the  United  States,  are  no  more  '  born  in  the  United  States  and 
subject  to  the  jurisdiction  thereof,'  within  the  first  section  of  the 
Fourteenth  Amendment,  than  the  children  of  subjects  of  any 
foreign  government  born  within  the  domain  of  that  government, 
or  the  children  born  within  the  United  States  of  ambassadors  or 
other  public  ministers  of  foreign  nations."  And  it  was  decided 
in  this  case  that  an  Indian  does  not  become  a  citizen  by  living 
apart  from  his  tribe,  but  can  gain  citizenship  only  through 
naturalization. 

The  segregation  of  tribal  Indians  from  the  body  of  the  American 
people  is  an  established  feature  of  our  polity.  In  the  words  of 
Justice  Miller,  "  they  always  have  been  regarded  as  having  a  semi- 
independent  position  when  they  preserved  their  tribal  relations; 
not  as  States,  not  as  nations,  not  as  possessed  of  the  full  attributes 
of  sovereignty,  but  as  a  separate  people,  with  the  power  of  regulat- 
ing their  internal  and  social  relations."^ 

If  we  should  annex  the  Philippines,  it  may  be  assumed  that  we 
would  classify  as  many  of  the  islanders  as  possible  under  the  head 
of  "  wards,"  "  dependent  nations,  "  or  "  tribal  Indians."  But  this 
classification  could  not  be  made  arbitrarily,  for  the  constitutionality 
of  our  discrimination  against  the  Indian  is  based  on  the  fact  that  he 
owes  allegiance  to  a  political  organization  other  than  though  in- 
ferior to  the  United  States.  Hence  we  could  apply  our  Indian 
policy  in  the  Philippines  only  to  persons  who  have  not  been  in  fact 
within  the  jurisdiction  of  Spain,  but  have  been  governed  by  their 
tribal  organizations. 

After  many  of  the  islanders  had  been  relegated  to  the  condition 
of  undesirable,  troublesome,  and  expensive  "  wards,"  there  would 
remain  probably  several   millions  whose  claims   to  citizenship  by 

1  169  U.  S.  649,  653.  2  112  u.  S.94,  102. 

3  United  States  v.  Kagama,  ri8  U.  S.  371,381. 


20 

allegiance  might    not   be  rejected,  and  whose    children  would  be 
unquestionably  citizens  of  the  United   States. 

Among  the  rights  incident  to  citizenship  is  that  of  moving  freely 
throughout  the  length  and  breadth  of  the  United  States.  Whether 
Malays  would  be  induced  to  come  here  in  sufficient  numbers  to 
lower  the  rate  of  wages  in  any  part  of  the  country,  I  do  not  dis- 
cuss. But  citizens  have  the  right  to  compete  with  other  citizens, 
and  employers  will  go  far  for  cheap  labor. 

Although  citizens  of  the  United  States  have  not  as  such  the 
right  to  vote,  they  may  gain  a  residence  in  any  State,  and  cannot 
be  refused  the  suffrage  therein  on  account  of  "  race,  color,  or  pre- 
vious condition  of  servitude." 

III. 

May  the  United  States  assume  permanent  sovereignty  over  the 
Philippines  without  annexing  them  ;  that  is  to  say,  without  making 
them  a  part  of  the  republic  ?  If  this  be  lawful,  our  government  may 
rule  the  islands  unembarrassed  by  certain  constitutional  limita- 
tions and  requirements  that  affect  it  within  the  United  States,  and 
inaugurate  a  provincial  system  capable  of  indefinite  extension. 

Although  the  question  suggests  a  federal  power  over  territory 
beyond  the  United  States,  the  power  itself  must  be  derived  from 
the  Constitution. 

The  question  cannot  be  answered  by  referring  to  the  power  to 
make  treaties,  for  these  are  not  extra-constitutional  agreements. 
They  are  a  part  of  the  law  of  the  land,  and  quite  as  subordinate  to 
the  Constitution  as  are  acts  of  Congress,  with  which  they  rank  in 
point  of  internal  obligation. 

The  "  general  welfare  "  clause,  that  playground  of  lax  construc- 
tionists, is  ineffective,  for  it  is  "  the  general  welfare  of  the  United 
States,"  not  the  Philippines  or  Thibet  or  other  outlying  country.  ' 
Equally  ineffective  is  the  power  of  Congress  "  to  make  all  needful 
rules  and  regulations  respecting  the  territory  or  other  property  of 
the  United  States,"  for  whatever  may  be  the  precise  meaning  of 
this  clause  it  contains  no  warrant  for  the  ruling  of  provinces.  The 
truth  is  that  the  territorial  jurisdiction  of  Congress  cannot  be  ex- 
tended beyond  the  bounds  of  the  republic  for  which  only  it  is 
empowered  to  legislate  and  in  which  the  Constitution  is  supreme. 

There  is  but  one  constitutional  power  that  affords  an  excuse  for 
discussing  the  question,  and  that  is  the  power  exerted  in  declaring 


21 

war,  which  gives  the  President  a  roving  commission  to  invade 
and  hold  enemy  country. 

In  Fleming  v.  Page/  the  power  to  make  war  and  the  character 
of  belligerent  occupation  were  carefully  considered.  Chief  Justice 
Taney  said  :  "  A  war  .  .  .  declared  by  Congress  can  never  be  pre- 
sumed to  be  waged  for  the  purpose  of  conquest  or  the  acquisition  of 
territory  ;  nor  does  the  law  declaring  the  war  imply  an  authority  to 
the  President  to  enlarge  the  limits  of  the  United  States  by  subju- 
gating the  enemy's  country.  The  United  States,  it  is  true,  may 
extend  its  boundaries  by  conquest  or  treaty,  and  may  demand  the 
cession  of  territory  as  the  condition  of  peace,  in  order  to  indemnify 
its  citizens  for  the  injuries  they  have  suffered,  or  to  reimburse  the 
government  for  the  expenses  of  the  war.  But  this  can  be  done 
only  by  the  treaty-making  power  or  the  legislative  authority,  and 
is  not  a  part  of  the  power  conferred  upon  the  President  by  the 
declaration  of  war.  His  duty  and  his  power  are  purely  military. 
As  commander-in-chief,  he  is  authorized  to  direct  the  movements 
of  the  naval  and  military  forces  placed  by  law  at  his  command,  and 
to  employ  them  in  the  manner  he  may  deem  most  effectual  to  har- 
ass and  conquer  and  subdue  the  enemy.  He  may  invade  the  hos- 
tile country  and  subject  it  to  the  sovereignty  and  authority  of  the 
United  States.  But  his  conquests  do  not  enlarge  the  boundaries  of 
this  Union,  nor  extend  the  operation  of  our  institutions  and  laws 
beyond  the  limits  before  assigned  to  them  by  the  legislative  power. 

"  It  is  true  that,  when  Tampico  had  been  captured,  and  the  State 
of  Tamaulipas  subjugated,  other  nations  were  bound  to  regard  the 
country,  while  our  possession  continued,  as  the  territory  of  the 
United  States,  and  to  respect  it  as  such.  For,  by  the  laws  and 
usages  of  nations,  conquest  is  a  valid  title,  while  the  victor  main- 
tains the  exclusive  possession  of  the  conquered  country.  The 
citizens  of  no 'other  nation,  therefore,  had  a  right  to  enter  it  with- 
out the  permission  of  the  American  authorities,  nor  to  hold  inter- 
course with  its  inhabitants,  nor  to  trade  with  them.  As  regarded 
all  other  nations,  it  was  a  part  of  the  United  States,  and  belonged 
to  them  as  exclusively  as  the  territory  included  in  our  established 
boundaries. 

"  But  yet  it  was  not  a  part  of  this  Union.  For  every  nation  which 
acquires  territory  by  treaty  or  conquest  holds  it  according  to  its 
own  institutions  and  laws.     And  the  relation  in  which  the  port  of 

1  9  Howard,  603,  614. 


22 

Tampico  stood  to  the  United  States  while  it  was  occupied  by  their 
arms  did  not  depend  upon  the  laws  of  nations,  but  upon  our  own 
Constitution  and  acts  of  Congress.  The  power  of  the  President 
under  which  Tampico  and  the  State  of  Tamaulipas  were  conquered 
and  held  in  subjection  was  simply  that  of  a  military  commander 
prosecuting  a  war  waged  against  a  public  enemy  by  the  authority 
of  his  government.  And  the  country  from  which  these  goods 
were  imported  was  invaded  and  subdued,  and  occupied  as  the  ter- 
ritory of  a  foreign  hostile  nation,  as  a  portion  of  Mexico,  and  was 
held  in  possession  in  order  to  distress  and  harass  the  enemy.  While 
it  was  occupied  by  our  troops,  they  were  in  an  enemy's  country, 
and  not  in  their  own  ;  the  inhabitants  were  still  foreigners  and 
enemies,  and  owed  to  the  United  States  nothing  more  than  the 
submission  and  obedience,  sometimes  called  temporary  allegiance, 
which  is  due  from  a  conquered  enemy,  when  he  surrenders  to  a 
force  which  he  is  unable  to  resist.  But  the  boundaries  of  the 
United  States,  as  they  existed  when  war  was  declared  against 
Mexico,  were  not  extended  by  the  conquest  ;  nor  could  they  be 
regulated  by  the  varying  incidents  of  war,  and  be  enlarged  or 
diminished  as  the  armies  on  either  side  advanced  or  retreated. 
They  remained  unchanged.  And  every  place  which  was  out  of 
the  limits  of  the  United  States,  as  previously  established  by  the 
political  authorities  of  the  government,  was  still  foreign  ;  nor  did 
our  laws  extend  over  it." 

A  provisional  control  assumed  by  the  President  during  a  bel- 
ligerent occupation  may  last  until  the  end  of  the  war,  and  if  the 
territory  does  not  then  revert  to  its  former  sovereign,  may  be  pro- 
longed until  a  normal  government  shall  be  established. 

This  provisional  control  may  continue  by  the  sufferance  of  Con- 
gress after  the  territory  has  been  annexed  to  the  United  States. 
For  example.  Congress  never  organized  a  government  for  Califor- 
nia, but  permitted  the  government  instituted  by  the  President 
during  our  hostile  occupation  to  continue  after  the  cession  of  the 
territory  and  until  the  State  of  California  was  admitted.  The 
Supreme  Court  said  in  this  relation  :  — 

"  The  government  of  which  Colonel  Mason  was  the  executive 
had  its  origin  in  the  lawful  exercise  of  a  belligerent  right  over  a 
conquered  territory.  It  had  been  instituted  during  the  war  by  the 
command  of  the  President  of  the  United  States.  It  was  the  gov- 
ernment when  the  territory  was  ceded  as  a  conquest,  and  it  did  not 
cease  as  a  matter  of  course  or  as  a  necessary  consequence  of  the 


restoration  of  peace.  The  President  might  have  dissolved  it  by 
withdrawing  the  army  and  navy  officers  who  administered  it,  but 
he  did  not  do  so.  Congress  could  have  put  an  end  to  it,  but  that 
was  not  done.  The  right  inference  from  the  inaction  of  both  is 
that  it  was  meant  to  be  continued  until  it  was  legislatively  changed. 
No  presumption  of  a  contrary  intention  can  be  made."  ^  It  should 
be  noted  that  whatever  may  have  been  the  position  of  California 
during  the  belligerent  period  of  the  provisional  government,  the 
country  became  a  part  of  the  United  States  upon  its  annexation 
and  was  thenceforth  within  the  purview  of  the  Constitution. 

There  is  but  one  way  to  rule  the  Philippines  without  annexing 
them,  and  that  is  by  the  authority  of  the  President.  In  case  the 
United  States  do  not  annex  the  islands  by  treaty  their  forces  will 
nevertheless  remain  in  possession  after  the  passing  of  Spanish 
sovereignty.  Our  possession  will  be  exclusive  against  the  world. 
Internationally  the  Phillippines  will  be  United  States  territory, 
but  something  will  remain  to  be  done  before  they  become  domes- 
ticated—Congress must  legislate  for  them.  When  this  is  done 
the  country  will  be  a  part  of  the  United  States  because  it  has  come 
under  their  normal  sovereignty.  Until  this  is  done  the  President 
will  hold  and  control  the  islands  in  the  absence  of  obstructive  legis- 
lation by  Congress.  In  these  circumstances  he  may  withdraw  the 
forces  and  leave  the  country  to  its  fate;  recognize  a  local  govern- 
ment ;  make  a  disposition  of  the  islands  by  diplomatic  arrangement 
or,  with  the  consent  of  the  Senate,  by  treaty  ;  or  continue  his  rule. 
He  will  be  the  arbiter  of  the  Philippines  by  virtue  of  a  possession 
begun  under  the  authority  of  Congress  and  continued  by  its  suffer- 
ance. In  describing  his  powers  as  despotic  I  do  not  mean  that 
they  would  be  exerted  with  unnecessary  severity,  but  simply  that 
they  would  not  be  restrained  by  any  law  to  which  the  islanders 
might  appeal.  (Whether,  or  how  far  Congress  could  guide  the 
President's  action  in  the  Philippines  by  legislation  directed  to  him 
or  his  American  subordinates  I  do  not  discuss).  Here  is  provincial 
government  and  it  may  last  during  the  forbearance  of  Congress. 
Such  a  government  is  only  reconcilable  with  the  principles  of  the 
Constitution  as  a  temporary  arrangement  made  advisable  by  the 
results  of  war. 

We  cannot  extricate  ourselves  from  the  Philippine  entanglement 
with  credit  by  simply  withdrawing  our  forces.     Our  operations  in 


1  Cross  V.  Harrison,  i6  Howard,  164,  193. 


24 

Luzon  have  given  the  cotip  de  grdce  to  the  old  order  without  per- 
fecting a  new  one,  and  while  we  are  not  called  upon  to  insure 
the  peace  of  the  islands,  we  are  morally  persuaded  to  exert  our 
influence  towards  bettering  their  condition. 

If  the  difficulties  in  the  way  seem  to  be  insurmountable,  it  is 
only  because  they  lie  in  a  field  of  international  action,  in  which, 
fortunately,  we  have  not  had  much  experience.  Hitherto  the 
United  States  have  displayed  little  concern  in  the  "  control,  dispo- 
sition, and  government"  of  foreign  territory,  though  they  have 
proclaimed  and  enforced  the  Monroe  doctrine  for  the  protection 
of  American  States.  But  the  European  Powers  have  made  the 
minding  of  other  people's  business  a  matter  of  unremitting  atten- 
tion and  frequent  experiment.  Many  of  their  actions  in  this 
regard  are  forbidden  to  us  by  constitutional  or  moral  considera- 
tions ;  none  perhaps  would  serve  as  a  model  for  our  precise  imita- 
tion ;  but  they  suggest  that  there  is  an  opportunity  to  do  justice 
to  the  Philippines  and  promote  our  commercial  interests  in  the 
East  without  annexing  the  islands  or  ruling  them  as  provinces 
in  derogation  of  our  republican  principles. 

I  am  sufficiently  impressed  with  the  power  of  my  country  in 
regard  to  the  Philippines  to  believe  that  any  disposition  of  them 
that  it  would  be  likely  to  commend  would  be  tolerated  if  not  ap- 
proved by  the  Maritime  Powers.  Nor  would  their  toleration  be 
due  alone  to  respect  for  the  United  States.  I  think  that  in  our 
eyes  the  Philippines  are  magnified  beyond  their  true  proportions 
on  the  political  map  of  the  world.  Rich  as  these  islands  may  be, 
important  as  is  their  strategic  position,  the  aggressive  Powers  are 
pre-empting  or  seizing  richer  lands  and  better  vantage-grounds 
with  no  more  serious  consequences  as  yet  than  "  strained  rela- 
tions "  or  "  demonstrations." 

An  acceptable  solution  of  the  Philippine  problem  might  be 
achieved  by  pursuing  one  of  the  following  courses  :  — 

I.  Neutralize  the  Philippines  and  recognize  a  local  government. 
Accord  recognition  upon  conditions  that  will  afford  due  protection 
to  foreign  interests,  including  perhaps  the  institution  of  an  inter- 
national court,  as  in  Egypt,  and  foreign  supervision  of  the  customs, 
as  in  China,  or  even  of  fiscal  matters  generally,  as  in  Egypt. 

II.  Neutralize  the  Philippines  and  either  establish  a  government 
on  somewhat  the  same  lines  as  the  Congo  Free  State,  or  transfer 
them  to  an  unobtrusive  but  competent  state,  like  Holland. 


25 

III.  Recognize  the  titular  sovereignty  of  Spain  over  the  islands, 
but  transfer  their  entire  administration  to  another  Power.  Such 
is  the  situation  of  Cyprus  and  Bosnia,  which,  nominally  Turkish, 
are  fully  governed  by  Great  Britain  and  Austria  respectively. 

IV.  Transfer  the  Philippines  to  any  Power  that  can  be  reason- 
ably expected  to  rule  them  wisely  and  humanely  and  open  them  to 
the  world. 

These  courses  do  not  exhaust  the  possibilities  but  rather  sug- 
gest them  ;  and  a  practicable  disposition  of  the  Philippines  other 
than  their  annexation  to  the  United  States  will  reward  a  deter- 
mined effort  to  accomplish  it. 

Upon  the  assumption  that  the  pending  Treaty  of  Paris  provides 
for  the  cession  of  the  Philippines,  it  is  asserted  that  we  are  so 
deeply  committed  to  annexation  that  further  opposition  would  be 
unbecoming,  if  not  unpatriotic.  This  assertion  belittles  the  great- 
est of  all  the  powers  especially  confided  to  the  Senate.  There  is  a 
courteous  presumption  in  favor  of  a  treaty  presented  to  the  Senate, 
but  nothing  more.  A  treaty  of  peace  that  cannot  be  amended  by 
the  Senate  without  danger  of  reopening  hostilities  has  of  course  a 
peculiar  claim  to  ratification.  The  Treaty  of  Paris  is  not  in  this 
category.  Nor  is  it  a  document  chiefly  of  international  concern 
intended  to  promote  the  renewal  of  friendly  relations  between  the 
United  States  and  Spain.  Assuming  that  the  annexation  of  the 
Philippines  is  embodied  in  the  treaty,  it  is  the  most  questionable 
project  of  domestic  concern  that  a  President  has  ever  submitted  to 
the  Senate. 

MoRRiSTOWN,  New  Jersey,  December  11,  1898. 


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